Q:I am trying to follow a criminal court case that started in our district but was moved. There’s nothing in the newspaper, on the TV or radio. Why is this? I called our local newspaper and was told they’d been barred from publishing anything about the case. How can this be?
A:In Canada, the ability of all citizens to access a courtroom to see what is happening inside is a closely guarded right. In modern times, that right has been expanded to include the media’s right to report on cases, so that a wider group of people has some form of access to the courtroom. However, in some cases, this gives way to other considerations.
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Courts are open, unless there’s a valid reason for them not to be. It is hard to justify any ban on media reporting of a particular case.
Over many years, the courts developed a set of strict rules under which public reporting of a criminal case could be restricted.
Section 486 of the Criminal Code states: “Any proceedings against an accused shall be held in open court.”
The code sets certain limited exceptions to this rule and indicates how to obtain a publication ban. The public may be excluded and a closed court could be held if the judge believes a ban is in the interest of public morals, maintenance of order or administration of justice or if it is required to prevent injury to international relations, national defence or national security.
In making the order, the judge must consider whether there are any other ways these interests could be protected. For example, having a particular witness testify behind a screen with no full name given can often be used. Even if such an order is made, it must be as limited as possible.
In every case, the judge is required to balance the bad effect such orders have on the principals of openness of our courts against the interests to be protected by such an order. The judge has to consider and balance the harm that might be done to society by a closed court or publication ban against the harm that might happen to a witness or complainant.
For a witness to testify behind a screen, there has to be one of three reasons. First, if the witness is under 18 or under a physical and/or mental disability, the screen may be used. Second, if the judge believes the screen is needed so the witness is not intimidated by the accused and is able to give a full account, it may be ordered. Third, where a witness is testifying against a terrorist organization or organized crime, the screen may be used.
In addition to governing what occurs inside courts, judges have some power to govern the media and what it reports. In the case of certain offences, the media may publish the facts of the case but not facts that would identify the complainant.
In a sexual assault case involving family members, the identity of both the victim and the accused may be banned from publication, so that no one can identify the victim. As well, publication bans of certain facts may be granted where needed to protect witnesses and ensure they come forward.
The Criminal Code makes the judge look at a list of at least seven factors before deciding whether to grant a publication ban. The judge must always consider rights to a fair and public hearing. The judge must consider whether there is a real and substantial risk that the victim or witness would suffer significant harm if his identity was disclosed and whether the publication ban is needed to protect him from harm, intimidation or retaliation.
The judge must examine the harmful and beneficial effects of such an order and strike the proper balance. The impact of the proposed order on the freedom of expression and freedom of the press must be taken into account.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
